New Developments in the Restitution of Cultural Property ... · New Developments in the Restitution of Cultural Property: ... In such cases, the handing back of property ... The restitution

New Developments in the Restitutionof Cultural Property: Alternative Meansof Dispute ResolutionMarie Cornu*

Marc-André Renold**

Abstract: Alternative methods of dispute resolution are an important resourcein matters of cultural heritage in addressing the return, restitution, andrepatriation of cultural property. The purpose of this article is to analyze thesituations in which such methods might be preferred to the classical judicialmeans and to examine the problems that might arise.

The article is in two parts. The first part describes the actors as well as thecurrent methods used for the restitution and return of cultural property. Thesecond part explores the types of property that lend themselves to alternativedispute resolution techniques and lists the—often original—substantivesolutions that have been used in practice.

Alternative methods of dispute resolution enable consideration of nonlegalfactors, which might be emotional considerations or a sense of “moralobligation,” and this can help the parties find a path to consensus.

1. Introduction

1. The circumstances in which the issue of restitution of cultural property arisesvary considerably. The various causes of dispossession may be trafficking (theft orunauthorized export), wartime plunder, or appropriation or trades between deal-ers in times of colonization or occupation. The handing back of property to theoriginal possessor or owner is known variously as restitution, return, and repatria-

*French National Centre for Scientific Research (CNRS)* *University of Geneva, Art-Law Centre

ACKNOWLEDGEMENT: This article has been published in French the Journal du Droit Inter-national (Clunet), No. 2/2009 (April-May-June 2009), pp. 493–533. The authors wish to thankUNESCO for its kind help for the translation into English.

International Journal of Cultural Property (2010) 17:1–31. Printed in the USA.Copyright © 2010 International Cultural Property Societydoi:10.1017/S0940739110000044

1

tion. Although there is not always a clear distinction in the texts1 between theseterminological variations, it is clear that the various forms of dispossession aretreated differently in law, with some covered by private law instruments and oth-ers by public law.2

2. The term restitution is currently mostly used for property pillaged in timesof war or for stolen property. According to Kowalski, it always denotes an unlaw-ful situation.3 The term return is preferred for property displaced for the benefitof the colonial power and restored to its country of origin, and also for cases ofunlawful export. In the context of colonization, the issue of unlawfulness does notarise if the dispossession was in compliance with the national and internationallaws in force at the time. In such cases, the handing back of property tends to bebased on the need to return irreplaceable cultural heritage to those who createdit.4 With unlawful exports, the property is returned to the state of origin withoutthe question of ownership arising.5 In both these situations, return depends moreon the notion of territory, while restitution in the technical sense presupposes thatthere is an identified recipient. As far as repatriation is concerned, this refers to aspecific form of restitution whose destination can vary: either to the country wherethe cultural property belongs or to the ethnic group that owns it. The term ismost often used in the context of claims by indigenous peoples.

3. Subject to that, points of convergence can be seen where there are no legalmeans of claiming restitution, either because of the passage of time or becausethere has been no unlawful act. It can also happen that, once outside a state’s ter-ritory, there may be limits to the protection afforded to a disputed item of prop-erty under public law, even where international conventions apply, as these aresometimes unenforceable. Nigeria’s claim to the Nok statuettes, based on theUNESCO Convention on the Means of Prohibiting and Preventing the Illicit Im-port, Export and Transfer of Ownership of Cultural Property, signed in Paris in1970,6 was rejected by the French courts simply because that convention, ratifiedby France in 1997, was not directly applicable and no implementing legislationhad been enacted.7

4. Besides the differences observed in the way the law treats restitution, the searchfor alternative forms of resolution of the various types of dispossession revealssome common features. The aim of the Intergovernmental Committee for Pro-moting the Return of Cultural Property to Its Countries of Origin or Its Restitu-tion in Case of Unlawful Appropriation, established by UNESCO in 1978, is toseek “ways and means of facilitating bilateral negotiations for the restitution orreturn of cultural property to its countries of origin.”8 Its scope is therefore ex-tremely wide, covering thefts as well as removals during colonization9.

5. More often than not, “voluntary” restitution occurs in situations where theredo not appear to be any available legal means of convincing or compelling a partyto make restitution. Thus, when France agreed to enter into negotiations with Ni-geria on the subject of the Sokoto and Nok statuettes unlawfully exported fromNigeria and acquired by the French state in 1999, it did so as a gesture of good-

2 MARIE CORNU AND MARC-ANDRÉ RENOLD

will,10 and the agreement that was reached acknowledges Nigeria’s ownership ofthe objects, which remain on deposit with the Quai Branly Museum for 25 years,renewable by joint agreement.11 The lack of legal recourse is one of the workinghypotheses here, but not the only one: This article will also address techniques foravoiding formal legal proceedings.

6. Alternative means of settling conflicts of interest in the ownership of cul-tural property, which coexist with the traditional tools (such as bilateral or multi-lateral treaties), take many forms: unilateral decisions or agreements that mayinvolve various forms of intermediary (namely, mediation, conciliation, or arbi-tration). In the last few decades, these consensual arrangements have become in-creasingly popular, both in terms of form and substance, in line with changingsensitivities regarding the restitution of cultural property. The idea that there is amoral duty to make restitution of, or pay compensation for, highly valuable orsignificant cultural heritage items is strongly gaining ground, especially when thedispossession dates back to a period of colonial domination. Furthermore, de-mands of communities are increasing, and the collective rights of indigenous peo-ples are more and more being recognized. As rightly stated by Pomian, “what liesbehind the renewed interest in cultural property restitution over the past decadesis merely an attempt to compensate for the past, which touches on outstandinghistorical issues, such as European colonization, the Second World War, and dis-crimination against indigenous peoples.”12 Indigenous heritage claims and the re-surgence of the issue of looting have somewhat revived the process of restitution,13

resulting in the appearance of complex arrangements. It may prove useful to ex-plore the various remedies both as to the practices and methods they use (I) andthe substantive solutions they offer (II).

II. New Developments in Practices and Methods

7. Following the UNESCO General Conference held in Paris in 1978,14 the Inter-governmental Committee for Promoting the Return of Cultural Property to ItsCountries of Origin or Its Restitution in Case of Unlawful Appropriation was es-tablished15 and immediately began work on seeking interstate solutions in spe-cific cases of restitution or return.16 More recently, it was suggested that thecommittee’s terms of reference be extended to offer mediation and conciliation tothe member states.17

8. Other organizations, such as the International Council of Museums (ICOM),18

the International Law Association (ILA)19 and the Institut de Droit Internationalhave become involved in issues of return or restitution by formulating recommen-dations or resolutions. Mention should also be made of the work done under theauspices of the United Nations, particularly the Declaration on the Rights of In-digenous Peoples.20 The proliferation of forums in which issues of restitution arediscussed has undoubtedly encouraged the development of practices and meth-

ALTERNATIVE MEANS OF DISPUTE RESOLUTION 3

ods in this field. Changes in the institutional context affect not only the dynamicsof claims and the capacity of the claimants but also the terms on which returns orrestitution can be arranged.

A. The Protagonists

9. The restitution of cultural property has always been primarily an affair of state,and of disputes between states,21 with each protagonist claiming sovereignty or own-ership over cultural property of major significance. It is essentially from this anglethat the issue is addressed in the 1970 UNESCO Convention,22 as in the EuropeanDirective on the restitution of cultural property adopted in 1993 to provide a frame-work for the return of unlawfully exported national treasures.23 A new develop-ment has been the emergence of other actors entitled to claim ownership of certainassets: States are not always the only parties. The question now is whether the newactors have standing to make claims based on their own heritage interests.

1. The Actors Are Many and Varied

10. Two features may be distinguished in the involvement of new actors in resti-tution claims. First, in addition to states, there are now other public and privatelaw entities, regional or territorial government authorities, and even museums.Second and more specifically, many claims are now being made by indigenouscommunities demanding the return of their heritage in the collective interest.

a. Multiple holders and claimants11. Many cases of restitution of cultural property involve entities other than

states. Museums, for example, are behind many restitutions, as borne out by nu-merous examples given in the journal Museum and the active role played by ICOM.Indeed, the ICOM Code of Ethics contains a number of recommendations thatencourage the return of such property.24 Some national professional organiza-tions have also adopted ethical rules on the subject.25 Recent examples of restitu-tion of cultural property by museums include the restitution agreements concludedbetween several museums in the United States and Italy in 2006 and 2007.26

12. The consolidation of the cultural competences of actors other than nation-states has further widened the circle of holders or claimants in a position to layclaim to heritage on which their identity rests. This is demonstrated by the exam-ple of the final settlement of a dispute between the two Swiss cantons of Saint-Gall and Zurich over items of public cultural property that had been in Zurich’spossession since 1712. One of the points in the 2006 mediation agreement wasrecognition of the importance of the manuscripts to the canton’s identity.27 An-other case involves two French local districts (communes), both claiming paint-ings depicting Saint Guilhaume that had been dispersed during the Revolutionand later recovered and redistributed, in disregard of the original possessor. Onecommune thus finds itself in possession of a painting that not only used to hangin the monastery of Gellone in the neighboring town of Saint-Guilhem-le-Désert


but also depicts the main episodes in the life of its founding father. Here, too, thelink between heritage claims and identity-based attachment is evident.28 The townof Saint-Guilhem-le-Désert has been attempting to recover the paintings since themid-nineteenth century, arguing that its ownership is well known. Its claims havebeen repeatedly reactivated, so far unsuccessfully.

13. Finally, voluntary restitution may also be made by private individuals, artdealers, and collectors in possession of important cultural property stolen frompublic collections. The altarpiece of Vétheuil, an item of religious heritage stolenfrom a church, was later given back to France by the holder, a professional antiquedealer. He had originally put the object up for sale but, with strong encourage-ment from his profession, eventually decided simply to make restitution.29 In theother case, a bronze Roman hand held by a collector in Basel was spontaneouslyhanded back to the Turkish authorities.30 In both cases, the emblematic nature ofthe objects and the fact that they formed part of the national heritage may haveinfluenced the decision. With the Turkish hand, another factor may have played apart. Switzerland and Turkey are negotiating an agreement on the import and re-turn of cultural property as part of measures to combat trafficking, which mightencourage such initiatives where no binding obligation exists. However, this doesnot always happen.31

b. Indigenous peoples: New subjects of collective rights14. The rights of indigenous peoples, long ignored by international law, were

enshrined for the first time in the Indigenous and Tribal Populations Convention(ILO Convention No. 107 of 1957),32 which was amended in 1989 and renamedthe Indigenous and Tribal Peoples Convention (No. 169).33 Both conventions focuson nondiscrimination and the self-determination of territorial rights.34 Concernabout culture, which was not mentioned in the first version of the convention, isexpressed in the 1989 text, although it is approached from a particular perspec-tive.35 In a section entitled “Land,” governments undertake to “respect the specialimportance for the cultures and spiritual values” of this bond with the land.36

15. These rights now more generally include cultural and intellectual propertyrights, as clearly stated in the resolution adopted by the United Nations GeneralAssembly on September 13, 2007.37 The initial premise is in the 1993 MataatuaDeclaration adopted at the International Conference on the Cultural and Intellec-tual Property Rights of Indigenous Peoples38 and the 1994 Draft Declaration onthe Rights of Indigenous Peoples.39 These concerns, initially enshrined in texts onthe protection of basic rights, then took on a life of their own to inform culturalproperty law. They appear in the texts and other documents produced by UNESCO,Unidroit, and the Council of Europe.

16. The 1970 Convention thus provides, still in fairly vague terms, that a state’scultural heritage includes “cultural property created by the individual or collectivegenius of nationals of the State concerned.”40 References to the rights of commu-nities are spelled out more clearly in the new generation of cultural conventions


such as the Convention for the Safeguarding of the Intangible Cultural Heritage41

and the Convention on the Protection and Promotion of the Diversity of CulturalExpressions.42 These two instruments are nonetheless silent on the restitution oftangible heritage, unlike the Unidroit Convention on Stolen or Illegally ExportedCultural Objects, which specifically refers to “a claim for restitution of a sacred orcommunally important cultural object belonging to and used by a tribal or indig-enous community in a Contracting State as part of that community’s traditionalor ritual use”43 and also to their return if the export “significantly impairs” itsinterest.44

17. The indigenous people–heritage nexus, a notion in which various sourcesintersect,45 has given rise to a new concept as found in the Council of EuropeFramework Convention on the Value of Cultural Heritage for Society, namely, theheritage community, which denotes the multiple nature of ownership of culturalheritage. The community consists of “people who value specific aspects of cul-tural heritage which they wish, within the framework of public action, to sustainand transmit to future generations.”46

18. Indigenous peoples are the new subjects of rights and of some domesticlaws. Several states have adopted texts that recognize the rights of their indigenouscommunities; the United States, especially, has passed a famous act, the NativeAmerican Graves Protection and Repatriation Act (NAGPRA), adopted in Novem-ber 1990, establishing the right of Native Americans to repatriate a number ofcultural objects and, in particular, the right to recover sacred objects and humanremains, and requiring museums to make an inventory of them. Although thetitle of the act refers to graves and their contents, the scope of application of theinstrument seems to cover sacred objects in general.47

19. On the basis of these texts, indigenous peoples may autonomously exerciserights over their heritage. This raises the question of the nature and intensity ofthose rights, which vary from one instrument to another, and the determinationof what cultural property is covered. There are two distinct sets of prerogatives,both linked to the recognition of a form of moral right.48 Under the United Na-tions resolution, indigenous peoples are empowered to control the use of culturalproperty and to “manifest, practise, develop and teach their spiritual and religioustraditions, customs and ceremonies,” which implies access to the objects that sup-port those practices.49 The text thus introduces an original mechanism in estab-lishing a right of usage, but restitution is not obligatory in this case.50 This possibilityis mentioned in Article 11, which requires states to grant “redress through effec-tive mechanisms, which may include restitution, developed in conjunction withindigenous peoples, with respect to their cultural, intellectual, religious and spir-itual property taken,” irrespective of whether the dispossession was lawful or not.51

Respect for these rights may logically be secured through exchanges and negotia-tion, as alternatives to restitution. The solution is more radical with regard to humanremains, as the text imposes a right of repatriation, formulated in more rigorousterms.52


20. Of course, the binding force of this instrument and the extent of the state’sduty to return items are open to debate as it is merely a resolution. The attentiongiven to this new generation of collective cultural rights nonetheless strengthenstheir legitimacy, even in legal systems under which rights may not form the basisof an action for restitution, and likewise encourages voluntary arrangements. It isas if a moral obligation of restitution was gradually being established.

21. There are several possible explanations for the recent developments in claimsfor restitution, and in the terms on which it is granted. Above all, new sovereign-ties are emerging and becoming established, in which heritage values are beingconstituted or reconstituted in a search for identity that then triggers the processof restitution. This is the constitutive function of heritage, and it is here that newdevelopments are occurring. However, possessors also sometimes wish to makerestitution of property for ethical or political reasons. The case of the Maori headin the Museum of Rouen is particularly illustrative of the changing sensitivity inthe way such issues are approached. The head, which had become part of theMuseum’s collections during the trade boom of the late nineteenth century, hadbeen donated by a collector. The City of Rouen, which owned the collections, de-cided to return the head. It is interesting to read the record of the debate on thematter in the Municipal Council: “in making this restitution, the City of Rouenintends to perform an ethical act. This symbolic act is an expression of due re-spect for the beliefs of a people who refuse to allow their culture and identity todie. This head is moreover sacred in the eyes of Maori tribes and will thereforereturn to its land of origin for burial in accordance with ancestral rites.”53 As ex-plained below, this decision was then challenged successfully in the French courtsby the French Ministry of Culture.54

22. It could also be said that, in general and despite some resistance, heritageclaims are obviously strengthened by the protection of basic rights,55 as is clearlyapparent from recent texts on cultural heritage that have initiated changes in theway it is protected. Until recently, these texts laid greater emphasis on the preser-vation of objects or places, but they now concentrate increasingly on the rights ofpeople and communities in such matters.

2. The Capacity of Entities to Initiate the Process of Restitution

23. The growing number of actors involved in these processes of return or resti-tution raises the question of the capacity to give back or receive. Who has the dutyto make restitution, and to whom can a displaced object be returned? There is noone single answer.

24. In terms of the possessors, the power to dispose of the property generallylies with the owner. The statutes of some museums grant them complete freedomto make restitution. Under the agreements concluded between the Italian govern-ment and the Metropolitan Museum of Art in New York or the Museum of FineArts in Boston, these institutions have themselves contracted with the Italian gov-ernment. Another case in point is the Australian Museum, whose statutes afford it


considerable freedom to manage its collections, thereby enabling it to effect res-titutions without being obliged to request authorization and to sign contracts withother museums directly without having to go through diplomatic channels.56 Asthis facilitates the restitution process, it is tempting to regard it as a good solution.However, is it always good for curators to decide whether or not items should bereturned?

25. When the objects in question are designated as belonging to the nationalheritage, there is more at stake than the power of an owner over an object, even apublic owner. Collective heritage entails a different form of ownership that affectsfreedom to dispose freely of such property. Transfer of ownership may requireofficial authorization and is sometimes simply prohibited. The solution is derivedfrom several sources: public property law or, in some cases, a special law of cul-tural property. Prohibition on disposal weighs as a major factor. The “prohibitionon disposal” objection is often invoked in response to a claim for restitution,57

and its meaning can vary.26. In the English system, the rules on the inalienability of public property dif-

fer according to the property and the collections in question. Crown property maynot be alienated, which is similar to the concept of the public domain (domani-alité publique) in French law. Outside this restricted circle, the rule of inalienabil-ity can also be derived from museum statutes. National museums are individuallygoverned by laws that impose the principle of inalienability with respect of col-lections that they hold on behalf of the nation. “De-accessioning” is prohibited,save in exceptional cases. National museums may dispose of, donate, or sell theobjects in their collections if one of the following conditions is fulfilled: wherethey have a duplicate or the object is a document printed after 1850, of which themuseum has a photocopy; the object has become inappropriate for the collectionand may be sold without detriment to the interests of researchers or the public; orthe object has become unfit, for example, due to deterioration.58 The British Mu-seum,59 the Tate Gallery,60 and the National Gallery are all national museums.61

The statutes of other museums may also impose the inalienability of collections,but unlike the statutes of national museums, this is optional rather than obligatory.

27. Conversely, there is nothing to prevent museums (even national museums)from agreeing to long-term loans. This solution was adopted in the case of theBenvento Missal (a twelfth-century manuscript)62 and has also been consideredin relation to the Elgin Marbles. It would be for the Board of Trustees of the Brit-ish Museum to make such a decision, without government interference.63

28. In other cases, special laws may override the prohibition on disposal. UnderArticle 47 of the 2004 Human Tissue Act, nine national museums have been au-thorized to “transfer from their collection any human remains which they reason-ably believe to be remains of a person who died less than one thousand yearsbefore the day on which this section comes into force if it appears to them to beappropriate to do so for any reason,” provided that the requesting party providesproof of a continuous link.64


29. The inalienability of collections has been used as an argument in severalcases in which French museums are or have been involved. These include humanremains (Saartjie Baartman [called the Hottentot Venus] and also a Maori head)and sovereign archives.65 It was argued that the objects belonged to the publicdomain and were therefore inalienable. The argument can, however, be overrid-den, as it is in many systems. Inalienability of the public domain is not a consti-tutional principle. The inalienability rule has to do with the public utility of theitem, a special determination usually the result of a court decision, and bindingeven on the head of state, who may not dispose freely of such property as a gift toanother state, for example. It may, however, be challenged, if necessary, by a publicauthority. The scope of the public domain, an operational regime that protectsthe public interest,66 is relative, especially when the inclusion of an object is un-justified, per se or in the light of other interests. The reversibility of the designatedstatus of public property is a rule common to many states. This reasoning couldhave been used in the case of the Hottentot Venus. The object could have beende-accessioned pursuant to an administrative decision. Owing to the strong feel-ings aroused by the restitution, a law was adopted that carried the weight of legalauthority.67 In some cases, however, prohibition on disposal is absolute. Items inFrench collections that may not be de-accessioned include objects donated orbequeathed—which reassures benefactors—and public property acquired by pub-lic bodies other than the state with state assistance in the form of public financialsupport.68 Such irreversibility is open to serious question when the objects in-volved are part of another heritage. Nevertheless, it precludes any hope of resti-tution under the law as it stands.

30. Under Swiss law, property forming part of the government-owned heritageis not explicitly stated to be inalienable. However, it seems that the principle ofinalienability could apply to cultural property belonging to the government-owned heritage and, more specifically, to cultural property listed in the Federalinventory of the Confederation (Article 3 of the Federal Act on the InternationalTransfer of Cultural Property [LTBC] of June 20, 2003).69 As in the French sys-tem, government-owned heritage in Switzerland is based on the notion of classi-fication. As a result, objects that are no longer classified as being of public use orthose of disputed importance (the criterion for inclusion in the federal inventory)may be de-classified under the same procedure as is used for their classification.70

31. As to the status of cultural property included in the cantonal inventories inaccordance with Article 4 of the LTBC, the rules vary because cantons may declarethat certain objects are inalienable and their listing is indefeasible. Systems otherthan those based on inalienability also exist, such as alienation subject to autho-rization (as in the Canton of Fribourg for protected movable property belongingto legal entities under public or canon law).71

32. Provision for free disposal by the owner does not always work to the ad-vantage of the restitution process, as individual owners may oppose it, and thepublic authority or the state is powerless to force their hand. Some commentators


foresee difficulties arising regarding the “ownership of objects, collections, or doc-uments located in museums belonging to federal states or provinces having thefinal decision in the field of education and culture”72 or when such property isheld by foundations or private individuals. A state that wishes to return propertywill not always be able to overcome the owners’ opposition. This may be the case,for example, with property listed in the inventories of the Swiss cantons, over whichthe confederation has no right, or property listed in the inventories of the Ger-man Länder.73

33. The parallel issue of capacity to receive property also arises. In respondingto claims by indigenous peoples or other communities, can restitution be madedirectly to the claimants? A claim to ownership should not present problems whenthe holder of the right can be recognized as a natural or legal person in private orpublic law. A commune, region, or museum is entitled to recover possession of anobject once its ownership has been established. The issue is more complex whenthe claimant is a community. There is still no legal recognition of collective own-ership. In practice, such claims and restitutions are usually made through the state.74

The Hottentot Venus, ancestor of the Khoisan community, was returned toSouth Africa after the South African Ambassador made an official request toFrance on October 26, 2000.75 The City of Rouen took steps to return the Maorihead to New Zealand.76 Initially, Vaimaca Peru, a cacique from the Charruas eth-nic group of Uruguay, could not be handed back because the Uruguayan Govern-ment did not make an official request to France.77 By contrast, in 2006 Swedenreturned a totem that had been displayed at the National Museum of Ethnogra-phy in Stockholm, the first object to be returned directly to a Canadian indig-enous group.78

B. The Techniques Used

34. The traditional tools of interstate relations are still used for the restitution ofcultural property. Historically, the end of armed conflicts has often heralded therestitution of cultural property as required by peace treaties.79 One example is theagreement concluded by the French Republic and the Federal Republic of Ger-many on the transfer of material, objects, and documents to form a museum col-lection for the Allied Museum in Berlin.80 In more recent times, Italy and Libyaagreed to the restitution by the former to the latter of many objects removed dur-ing the colonial period.81 Other techniques are used alongside these older proce-dures, sometimes in novel ways. Restitution is either unilateral (based on laws oradministrative rulings) or bilateral (negotiated with or without mediation or re-ferred to arbitration).

1. Adoption of Special Laws or Unilateral Decisions

35. A law was passed to regulate the exchange of works between France and Spainin 194182 and again in 1956 for the restitution of a set of Japanese items by the


Guimet Museum. According to the single article of that law, the French Ministerof National Education was authorized to surrender to the Japanese Government,on a permanent and inalienable basis, approximately 60 objects from Japan (suchas pottery, sculptures, bronzes, and items made of jade and other precious stones)for the National Museum in Tokyo.83

36. In the case of public property, in most cases there is no need to enact a lawto initiate the restitution process. An administrative ruling suffices to secure re-moval of the objects from collections. Once they are no longer designated as beingof public utility, their public domain status and the resulting restrictions on theirdisposal no longer apply. The objects may therefore be surrendered. The proce-dure is legally valid but is not always easy to implement, especially when vehe-mently opposed by the administration and the directors of the collections. Thelatter mainly fear that a precedent will be set for property considered almost sac-rosanct: the nation’s heritage. From that standpoint, recourse to a formal legalprocess makes sense, as it highlights the exceptional nature of restitution. Francehanded the Hottentot Venus back to South Africa in unprecedented circum-stances involving the adoption of a single-article French law84 authorizing the res-titution. Because of the background of the case—Saartjie Baartman, to use herreal name, was taken from South Africa around 1810, died in France in 1816, andher skeleton was displayed in the Musée de l’Homme until 197685—an excep-tional legal solution was the preferred option. Moreover, recourse to legislationtook on a special significance here. First, the case concerned human remains, whichare not simply a cultural object like any other.86 Second, this method relieved thegovernment of the responsibility of making a decision on restitution. In this case,it provided a way of overcoming its reluctance.87 The question now is whether thesame solution could be used to extricate France from the embarrassing case of theMaori head or the Korean manuscripts held by the Bibliothèque Nationale.88 Thereare indeed serious doubts as to whether it is the role of legislation to resolve spe-cific cases. But this method obviates the need to debate the merits of heritage claimsand to strike a balance between two competing interests, when, as is most oftenthe case, there are admittedly legitimate arguments on both sides.

37. In some cases, however, only a law can end the deadlock caused by inalien-ability. The status of British collections has already been mentioned. In view ofthe de-accessioning criteria and in the absence of any justifying grounds, a lawwas necessary to authorize the removal of human remains from public collections.89

38. With regard to unilateral restitution initiatives, the decision taken by themunicipality of Geneva in the dispute on the Cazenoves frescoes is an interestingone. This dispute, well known to experts in private international law, concerned aclaim to frescoes removed from a chapel in Roussillon and subsequently acquiredby the Art and History Museum in Geneva. The claimants lost the case in theFrench courts, on the grounds of lack of territorial jurisdiction (ratione loci ).90

Reluctant to initiate proceedings in the Swiss courts, they decided to negotiate.Initially, the municipality of the City of Geneva, which has responsibility for the


Art and History Museum, agreed with the French authorities to grant a long-termloan.91 A few years later, the loan was unilaterally transformed into a donation bya decision of the Administrative Council of March 19, 2003,92 which has promptedquestions about the legitimacy of the de-accessioning decision by the Administra-tive Council of the City of Geneva.

39. It was also by unilateral decision that Italy made restitution of a sculpturethat had been de-accessioned from the public domain.93 The decision to returnthe Venus of Cyrene from the museum in Rome to Libya was strongly criticizedbut has been upheld by the Italian courts on the grounds of the primacy of cus-tomary international law.94

2. Negotiated Processes

40. Private agreements can be reached after a—sometimes relatively lengthy—process of negotiation between the parties. One interesting example is the nego-tiation that enabled the Republic of Italy to sign agreements with the BostonMuseum of Fine Arts, the Metropolitan Museum of Art of New York, and the J.Paul Getty Museum in California. None of the agreements, apart from the onesigned with the Metropolitan Museum of Art,95 has been published, althoughthe broad terms have obviously been revealed, in particular through press re-leases.96 What is interesting is the bilateral nature of the agreements: the Amer-ican museums agreed to make restitution of objects of dubious provenance thatmight have been obtained from illegal excavations, but they did so in exchangefor promises made by the Italian authorities entailing a commitment to allowinternational loans of similar works, some of which are specifically listed in theagreement.

41. Another type of agreement is one that follows mediation. Mediation isimmensely popular at the moment and has been expressly supported by manybodies, including ICOM97 and the Intergovernmental Committee for Promotingthe Return of Cultural Property to Its Countries of Origin or Its Restitution inCase of Unlawful Appropriation.98 Although it is difficult to ascertain howmany successful mediations there have been, primarily because the resultingagreements are often confidential, some are made public, especially when stateentities are involved. One noteworthy example is the mediation agreement be-tween the cantons of Saint-Gall and Zurich: the dispute between the two Swisscantons had existed since the religious wars in the early eighteenth century.99 Onthe basis of a provision in the Federal Constitution of 1999, the two cantonscalled on the confederation to act as mediator, and an agreement was signed inApril 2006. Although the ownership of the cultural objects in question (mainlyancient manuscripts) was granted to the Canton of Zurich, several other ele-ments were decided in favor of Saint-Gall, such as the long-term loan (27 yearsrenewable) of the manuscripts and the production of an exact replica of Prince-Abbot Bernhard Muller’s cosmographical globe at the expense of the Canton ofZurich.100


42. Negotiation can sometimes be used as a way of avoiding formal legal pro-ceedings, as for example with out-of-court settlements, some of which are ratifiedby a court.101

43. Mediation was, quite unusually, suggested by an English judge to avoid thelength and excessive expense of a trial when an Aboriginal community in Tasma-nia claimed human remains from an English museum. The judge invited each ofthe parties to appoint a mediator, and the two mediators succeeded in persuadingthe parties to reach an agreement permitting restitution in exchange for access tospecific scientific data.102

44. Although the Intergovernmental Committee has mentioned the possibilityof conciliation as an alternative method of dispute resolution,103 this techniquedoes not appear to have been used to date.

3. Arbitral Awards

45. Arbitration is another alternative method used, albeit rarely, in disputes overcultural property.104 Article 8, paragraph 2, of the UNIDROIT Convention on Sto-len or Illegally Exported Cultural Objects provides that “the parties may agree tosubmit the dispute . . . to arbitration.” The main example is the arbitration be-tween Maria Altmann and the Republic of Austria: In an award handed down onJanuary, 15 2006, an arbitral tribunal recognized Altmann, the sole descendent ofAdèle Bloch-Bauer, as the owner of five paintings by Klimt acquired by Adèle Bloch-Bauer and subsequently looted from her husband during the Nazi period in Aus-tria.105 Much has been written about this dispute, which began in the courts ofthe United States, culminating in a ruling by the U.S. Supreme Court that a pri-vate individual could bring an action against a foreign state for looting in breachof public international law.106 It was after that court ruling that the parties agreedto arbitrate. What is less well known is that a second arbitral award was handeddown a few months later by the same arbitral tribunal, rejecting a claim to a sixthKlimt painting whose ownership history, after purchase by Adèle Bloch-Bauer, hadbeen different from that of the other five.107

46. There is, as we have seen, a growth in use of alternative methods for theresolution of disputes over cultural property, involving a variety of actors and pro-cedures. We will now turn our attention to the content and aims of these tools, aswell as the often novel solutions they offer.

III. NEW SUBSTANTIVE DEVELOPMENTS

47. As has been seen, the current context of restitution is changing. The questionnow is whether these new developments also affect the objects of restitution, thatis, the way in which contractual relations are formed between claimants and hold-ers. On the first of these, the main idea to emerge is that the items in question are


generally sacred or highly symbolic objects. As to the different arrangements madefor restitution, experience shows that the instruments used vary considerably.

A. The Nature of the Property Claimed

48. Our analysis here is based primarily on cultural property forming part of astate’s heritage, these being the items of the highest importance whether they arein public or private hands. Looked at from this standpoint, claims mainly relate toitems considered to be inseparable from the country to which they belonged.108

The Intergovernmental Committee for Promoting the Return of Cultural Prop-erty to Its Countries of Origin or Its Restitution in Case of Unlawful Appropria-tion chooses to focus its efforts on objects in this category. Claims may relate toobjects with “a fundamental significance from the point of view of the spiritualvalues and cultural heritage of the people of a Member State” that were lost “as aresult of colonial or foreign occupation or as a result of unlawful appropriation.”Their symbolic, sacred, or religious value or importance to the state of origin should,in principle, command respect. The difficulty is nonetheless twofold: not only ofexpressing the original connection but also of identifying it. Does that link takeprecedence over all others? In reality, the equation is more complex. Relativelyspeaking, other interests, too, have a claim to legitimacy by virtue of the universalnotion of heritage and the dissemination of cultural plurality, or the need to pro-tect the heritage of mankind.109 Many museum collections have been establishedon the basis of this notion. The first questions to be resolved are whether or notthe acquisition was lawful, and what effect this has on the principle of restitutionor return.

1. The Issue of Unlawfulness

49. In practice, distinctions must be drawn depending on the period when a partytook possession. The lawfulness criterion is obviously decisive in the case of ob-jects procured recently, through trafficking, illegal export, or theft. In such situa-tions, the law does not always permit restitution, for a variety of reasons such asthe territoriality of criminal enforcement and the consolidation of rights by a pos-sessor in good faith. Where no such means of compulsion exist, it is precisely thatsense of unlawfulness that prompts states to make voluntary restitution or otherarrangements intended to recognize the rights of the country of origin. In recentcases of theft or unlawful export, restitution has been more likely where the prop-erty in question is highly valued by the state. In such cases, not only is the burdenof illegality more keenly felt, but also insufficient time has passed to lend legiti-macy to any cultural link other than to the country of origin.

50. As to France’s acquisition of three Nok and Sokoto objects from Nigeria forthe Quai Branly Museum, appropriation is not unlawful under French law if thepossessor has acted in good faith. Export of those statues was, however, prohibitedin Nigeria, and they were on the ICOM Red List of stolen objects. It was this two-


fold consideration—that those objects had been trafficked and that they were ofmajor importance—that led to the signing of an agreement recognizing Nigeria’sownership while granting a renewable long-term loan (25 years) of the objects toFrance. The defence of good faith could have been raised to make such an ar-rangement unnecessary, but it seems that in the circumstances, a negotiated solu-tion was called for.

51. Where earlier dispossessions are concerned, the question arises in differentterms. If the test used were whether the dispossession was unlawful, any principleof restitution could easily be defeated. In most situations, either it was not unlaw-ful under the law applicable at the time, or any wrongfulness has been purged bytime. Besides the fact that it may not always be possible to ascertain and evaluatethe circumstances in which a dispossession occurred, it sometimes took place withthe consent of the states or communities concerned. This was the case with thenineteenth century trade in Maori heads. Thus, a discussion centered on unlaw-fulness usually leads nowhere.110

52. Should we now revisit situations considered as scandalous and reassess theirvalidity in the light of present-day laws or even ethical principles? A number ofcases of restitution in France are colored by this spirit of repentance. The exerciseis clearly a difficult one, with the obvious dangers and uncertainties involved inrejudging the past. Admittedly, periods of colonization did result in the displace-ment of cultural property, and this substantive loss has been harmful to some states.Would it not be preferable, however, to concentrate on the damage done to dis-possessed states, rather than on the “fault,” by focusing on the breaking of the linkwith the state of origin and its consequences? This is the dominant approach un-derlying the reference to the vital nature of these tokens of cultural identity111

and, in the UNIDROIT Convention on Stolen or Illegally Exported Cultural Ob-jects, to the significant impairment of sacred cultural property of collective im-portance.112 The question whether the act was lawful or unlawful becomes asecondary issue. This factor might, to a greater or lesser degree, influence the will-ingness to make restitution. However, it should never be a precondition of resti-tution, as this would provide a means of avoiding restitution in cases where it hadnot been established that the operation was unlawful. The United Nations Decla-ration on the Rights of Indigenous Peoples follows this logic when it acknowl-edges a right of repatriation for cultural, intellectual, religious, and spiritual objectstaken with or without the consent of the populations concerned.113

2. The Ownership Connection

53. It remains to be determined which property is vital to and inseparable fromthe countries or communities that produced it, and in what way it is connectedwith the state considered to have a greater right to possess it. The notion of coun-try of origin or provenance is not always clear-cut. Formally speaking, the countryof origin of an object is the country that designates the object as part of its cul-tural heritage, by distinguishing it in some way, for example, by classifying it as a


national treasure or including it in an ad hoc record. This is the definition adoptedin Council Directive 93/7/EEC of March 15,1993, on the return of cultural ob-jects unlawfully removed from the territory of a member state.114 However, statesdo not always identify the cultural property that they consider important, hencethe difficulty encountered in applying this criterion. In addition, this approach isunworkable when ownership is disputed and several states claim an eminent rightto the same object.

54. The notion of state of origin can also be defined in terms of the genuinelink between a community and a cultural object, rather than merely from a for-mal standpoint.115 In the resolution of the Institut de Droit International, thecountry of origin of a work of art “means the country with which the propertyconcerned is most closely linked from the cultural point of view.”116 Here again,though, this classification raises awkward questions: ties of adoption may also bevery strong. The prolonged possession, conservation, and long-term incorpora-tion of an object as part of a heritage create a sense of ownership. This principlehas been recognized in international instruments including the 1970 Conventionon the Means of Prohibiting and Preventing the Unlawful Import, Export, andTransfer of Ownership of Cultural Property and the 1995 UNIDROIT Conven-tion on Stolen or Illegally Exported Cultural Objects. The European Court ofHuman Rights also recently recalled this principle in the Beyeler case.117 As Prottobserved, some states may consider important objects originally from other coun-tries with which their population has close cultural ties as forming part of theirown heritage.118 Which links must therefore be considered to be closer? Those ofthe original country? The adoptive homeland? Or both (by treating objects asbinational)? Although this reasoning must be selective and confined to the mostimportant objects, even in these cases it is not easy to determine the link ofownership. It may be useful to examine some actual examples of restitution. Cul-tural property returned to its territory of origin or the subject of agreements(exchanges, loans, etc.) tends to come from public collections, archaeological ex-cavations, archives, and other cultural items intimately linked to the history ofstates, or to be sacred items and human remains. The latter two categories areoften mentioned in texts relating to the cultural heritage of indigenous peo-ples.119 It may be useful to explore in greater depth the nature of their link toone state or another.

55. As far as archives or manuscripts are concerned, some can be considered tobe so closely linked to the history of a state or community that they should nat-urally be held in that state or community. For example, the manuscripts of theIcelandic sagas are medieval documents compiled by a scholar and then bequeathedto the University of Copenhagen in 1730 and returned in 1965 by Denmark toIceland, which had become a sovereign state in 1918. Another example is the veryearly map of North America (undoubtedly one of the first) handed back to theUnited States by Germany.120 It could also be argued that the Korean archives takenby force at the end of the nineteenth century by the French fleet in retaliation for


the massacre of missionary priests might be returned to their country of origin, asthey are genuine sovereign archives, founding documents that are essential to anunderstanding of present-day Korea.121 The link in this situation is not only cul-tural but also political and organic.

56. In practice, it seems to have long been acknowledged that archives must behanded back, not only in the light of their historical value but also and above allbecause of their sovereign import and their role in the administration of territo-ries.122 From this perspective, archives are not in the same category as other cul-tural property. Their restitution is, however, not always an easy matter, particularlyin cases of state succession.123

57. Many sacred or ceremonial objects have also been the subject of restitu-tion. Examples are the totem pole returned by Sweden to indigenous peoples inCanada and the Vanuatu drum handed back to its country of origin by the Aus-tralian Museum. Some museum directors think that the U.S. act, NAGPRA,124

despite being silent on this specific point, requires restitution of fundamentalpieces that should never have left their place of origin. This would apply, forexample, of totem poles or emblematic objects. By contrast, the AmericanMuseum for Natural History has refused to hand back a meteorite, denying anylink to the claimant community.125 This position is debatable, in that the link oforigin is simply the value attributed to an object by a community or collectivity.It might also be open to the objection that the piece is of primordial scientificimportance.

58. Among the objects of sacred or symbolic value, human remains undoubt-edly deserve a category of their own, denoting links to the dead and to the earth.In such cases, it is difficult to argue against the formation of a cultural link. Dis-cussions are ongoing, for example, on requests for the restitution of Maori headsheld in several large museum collections. Generalizations about human remainsshould be avoided, however, not only because they take many forms126 but alsobecause their status changes over time. The decision by the Michael C. Carlos Mu-seum of Emory University of Atlanta to return the mummy of Ramses I was mo-tivated less by respect for the dead than by its historical connection and by thedesire to return the mummy to its place of origin.127 And yet on another level,museums’ bone collections have become the subject of scientific and documen-tary study, designated as “natural biological materials.”128 Arguably, there is scarcelyanything sacred in these fragments that have long ceased to be human. Some claimsshow, however, that the issue is not that simple. In the dispute between the Ab-original community of Tasmania and the British Natural History Museum con-cerning human remains claimed by the former, the Museum had intended toconserve the remains in order to take DNA samples as material of scientific inter-est for future use.129

59. The foundational dimension is also extremely relevant for objects found inarchaeological excavations, also known as “soil archives,” which are essential notonly to an understanding of states and their history but also to their construction


and foundations. Given the cultural and political considerations at stake, these areparticularly sensitive items.130

60. Last, with regard to elements removed from monuments, the link of originis clearly strengthened by the natural attachment of the detached part to its orig-inal support. It was probably on this basis that the U.S. Appeals Court ordered therestitution of the mosaics of the Autocephalous Church,131 as there was no dis-pute over state ownership in that case, in which an unscrupulous gallery directorhad acquired the mosaics under dubious conditions. Italy’s restitution of the obeliskto Ethiopia was no doubt similarly motivated to ensure reconstitution of and re-spect for the natural attachment. The Elgin Marbles case, however, shows howdifficult this solution is to implement.

61. The greatest problem lies in the fact that, in certain cases, both links arelegitimate, and it is therefore not easy to rule out one in favor of the other. Theidea of dual nationality, of a form of collective cultural ownership of property, isa solution that surely deserves more detailed exploration. Dispute resolution iscertainly moving toward the recognition, and therefore reconciliation, of the le-gitimate interests of both sides. Arguments are no longer couched solely in termsof restitution and dispossession. This new perspective has definitely been influen-tial in the emergence of alternative solutions other than restitution, which are viewedin some quarters as geared more toward rights of enjoyment and use than rightsof ownership.

B. Methods of Restitution

62. In current practice, the variety of restitution solutions is impressive. Negoti-ated agreements offer sometimes complex solutions, and there is also a tendencyto “uncouple” ownership from possession. Although some solutions focus on res-titution or an arrangement based on it, others provide an alternative to restitutionsubject to certain conditions. Joint solutions are also starting to appear. Further-more, several specific solutions can be adopted cumulatively in one specific case,as, for example, in the mediation by the Swiss Confederation in the dispute be-tween the cantons of Saint-Gall and Zurich over ancient manuscripts, which re-sulted in the simultaneous adoption of restitution, the recognition of the specialcultural importance of objects that were not handed back, a long-term loan, adonation, and the production of a replica of one of the cultural objects in ques-tion, all as part of the settlement.

63. Generally speaking, there seems to be a move toward settlements that arenot formally expressed in terms of victory and defeat, but rather acknowledge theexistence of legitimate interests on both sides. The stage of recognizing dual na-tionality or a form of collective ownership has not yet been reached,132but it isclear that reconciliation of interests is becoming the solution increasingly pre-ferred by all concerned.

64. The following is suggested as an initial categorization of possible solutions:


1 Restitution (simple restitution or for consideration)

65. This option appears to be the simplest: the claimant convinces the other partyof the need to make restitution of the cultural property in question (where theclaim is one of ownership) or return it (in the case of unlawful export). A typicalcase is the restitution of the five Klimt paintings ordered by the arbitral tribunalin Austria in the Altmann case.133 Another example is the simple restitution of theMaori head by the City of Rouen,134 although that decision was subsequentlyannulled.135

66. Restitution may also be associated with consideration. Thus the AksumObelisk was handed back to Ethiopia by Italy, which also bore all the transport,reconstruction, and restoration costs.136

2. Conditional Restitution

67. Closely akin to simple restitution, sometimes restitution is subject to condi-tions, which resembles the case of donations with obligations or conditions at-tached. One example concerning human remains is the restitution by the BritishNatural History Museum to an Aboriginal community in Tasmania, pursuant to a2007 mediation, of the remains of 13 Aborigines on condition that some DNAsamples handed back along with the remains of the bodies would not be buriedwith them but would be preserved for future scientific use that would require theconsent of the Aborigine community.137

3. Restitution Accompanied by Cultural Cooperation Measures

68. Nowadays, restitution can take place in the broader framework of coopera-tion between the parties involved. One example is the agreement by the Metro-politan Museum of Art in New York to hand back the famous Euphronios Krater,accompanied by a series of cooperation measures between the museum and theItalian authorities. Under the agreement of February 21, 2006, the Italian author-ities undertook, in exchange for the restitution, to make available to the museumas of January 15, 2008, “cultural assets of equal beauty and historical and culturalsignificance to that of the Euphronios Krater” via four-year international loans.138

The agreement goes on to list in detail the 12 specific objects that were to be lent,with inventory numbers. The museum furthermore undertook to make other res-titutions and the Italian authorities promised other loans, particularly of archae-ological objects found during missions financed by the Museum (Article 7). Theterm of the agreement is long, since it is stated to remain in force for 40 years.139

69. The agreements signed by Italy with the Boston Museum of Fine Arts(2006),140 the Getty Institute (2007),141 Princeton University (2007)142 and Cleve-land Museum of Art (2008)143 contained similar provisions.

70. Quite surprisingly, the agreements contained no choice of law clause. Thismeans that the parties have not explicitly chosen the law applicable to their con-tractual relations and that this must therefore be determined by interpretation.Given that these are rather sophisticated international agreements, the lack of such


a clause may appear unusual. As the Italian state’s claims are based on its publiclaw, it is hard to see Italy agreeing to the application to those claims of a law otherthan its own. The American museums were probably much more in favor of theagreements being governed by the law of the United States. The result was there-fore a deliberate silence, probably indicating failure to agree on this point.

71. As to disputes that might arise out of the performance of these agreements,all of them provide for International Chamber of Commerce arbitration in Pariswith three arbitrators. This provision, too, is noteworthy: Despite the lack of anydirect link between the agreements and international trade, disputes are referredto a center specializing in the settlement of commercial disputes.144

72. It is also of interest that the parties wanted their agreements to be regis-tered by the UNESCO Secretariat, but UNESCO refused, which in our opinion isregrettable While such refusal might be understandable, probably on the groundsthat the agreements had not been concluded between two states, their registrationwould have been very useful to the international community in allowing dissem-ination of the general principles of the agreements, though not of their specificcontent, as they all contain confidentiality clauses. Furthermore, as the first gen-eration of such agreements, it would have been desirable for UNESCO to be as-sociated with the example set by them.

4. Formal Recognition of the Importance to Cultural Identity

73. Where there is no simple or conditional restitution, agreements resulting fromnegotiation, mediation, or arbitration sometimes provide for formal recognitionof the objects’ importance to the cultural identity of one of the parties. In themediation by the Swiss Confederation in the dispute between the cantons of Saint-Gall and Zurich over ancient manuscripts, the objects that were not handed backto Saint-Gall were nonetheless explicitly recognized by Zurich as being of greatvalue to the identity of the Canton of Saint-Gall.145

74. Such recognition can be more than merely symbolic: In some cases, themuseums that retain the cultural assets in question nonetheless agree that theymay be used for ritual purposes by the community of origin.146

5. Loans (long-term, temporary and others)

75. Long-term loans are a common option in this field. When no simple or con-ditional restitution is envisaged, the parties quite often agree to the loan of assetswhose restitution was requested. Conversely, restitution may be agreed in ex-change for a loan to the party from whom they are claimed.

76. An example of the first situation is the mediation by the Swiss Confedera-tion in the dispute between the cantons of Saint-Gall and Zurich: Zurich’s own-ership was recognized, but the manuscripts were lent to Saint-Gall by Zurich for apotentially unlimited period.147

77. An example of the second type of long-term loan is the February 2002 agree-ment between France and Nigeria on the Nok and Sokoto statuettes, providing for


the recognition of Nigeria’s ownership of the objects in exchange for the grant ofa renewable 25-year loan to the Quai Branly Museum. Curiously enough, the pressrelease appears to interpret the loan as a form of compensation to France for itsgood faith, as the objects were made available free of charge.148

78. Temporary loans are arranged when simple restitution, even where desir-able, cannot be granted for technical reasons. For example, where the UnitedKingdom Spoliation Advisory Panel recommends that a national museum makerestitution of property, such restitution would require an amendment to the law,which could be a lengthy process. As noted earlier, the Benvento Missal, handedback by the British National Library, was such a case.149

79. With regard to these loans, there is much discussion about the issue of res-titution guarantees: Restitution proceedings could be brought against the benefi-ciary of the loan, and the state of origin might be minded to request some form ofguarantee to avoid finding itself in such a situation.150

6. Donations

80. Restitution can also take the form of a donation, sometimes after consider-able time. In the dispute over the Roman frescoes of Cazenoves (1984–1988),151

the Museum of Art and History of Geneva, whose ownership of the frescoes wasnot challenged in court, had nonetheless initially agreed to lend the frescoes totheir commune of origin in France.152 The loan was then unilaterally transformedinto a donation by the City of Geneva.153

81. The party that has ownership of the assets can also make a donation. In themediation by the Swiss Confederation in the dispute between the cantons of Saint-Gall and Zurich over ancient manuscripts, Zurich undertook to donate to Saint-Gall a manuscript that was not one of those listed in the latter’s claim.

82. There are even cases of successive donations: In October 2008 an eye froma statue of Amenhotep III was the subject of two almost simultaneous donations.The eye was first donated by a collector/purchaser to the Antikenmuseum in Basel,where it was being held, and it was at the same time donated by the museum tothe Egyptian state. The eye was thus reunited with the rest of the statue of Amen-hotep III, which had been reconstituted by archaeologists.

83. That said, donation is not always the appropriate solution, as it presup-poses that the donor is the rightful owner of the object, which the other partyoften refuses to acknowledge.

7. Setting Up Special Ownership Regimes (joint ownership, trusts andothers)

84. The imaginative powers of lawyers know no bounds. In legal proceedings con-cerning a Degas painting, “Landscape with Smokestacks,” looted by the Nazis andsubsequently purchased by a U.S. collector, the parties eventually agreed to thefollowing arrangement: the collector gave half of the painting to the Art Instituteof Chicago and the other half to the descendants of the family from which it had


been looted, with an option for the museum to purchase the second half of thepainting by paying half of the painting’s value based on a valuation agreed byboth parties. These were the terms of an out-of-court settlement reached by theparties in August 1998.154

85. Another remarkable case is that of the Afghan cultural assets held for manyyears in the Afghanistan Museum-in-Exile in Bubendorf, Switzerland, with a viewto safeguarding them and one day making restitution. This was a form of trustee-ship that ended on the day UNESCO decided that the property in question couldbe handed back.155

86. Last, original solutions have been suggested in this field based on the Anglo-American trust and the Waqf in Islamic law.156

8. The Production of Replicas

87. The making of replicas cannot be deemed as equivalent to restitution. It is,however, a technique that can be used as one element in the resolution of a res-titution claim, forming part of arrangements that are sometimes complex.

88. This solution remains little used, despite being regarded as an interestingoption in this field. When the Swiss Confederation mediated between the cantonsof Saint-Gall and Zurich, one of the objects in dispute was a magnificent cosmo-graphical globe by the Prince-Abbot Bernhard Müller dating from 1554. The par-ties agreed that Zurich could keep the original globe, provided that it bore thecost of producing an exact replica to be given to Saint-Gall. The production of thereplica was reported in detail by the local press and required considered technicalskill, as the original could not under any circumstances be dismantled.157

89. Other proposals have been made, some successfully: For example, an artistoffered to make a copy of Veronese’s “The Wedding Feast at Cana” (the famousoriginal of which is in the Louvre) and install it in the refectory of the monasteryon the Venetian island of San Giorgio Maggiore, where the original was locatedbefore it was taken by Napoleon.

9. Withdrawal of the Claim for Restitution in Exchange for FinancialCompensation

90. This situation is fairly common, particularly when the claimant realizes thatthe case is a difficult one and is more interested in financial compensation than inthe work itself. Several disputes over looted assets have ended in this way, a veryrecent example being the case of Schoeps v. the Museum of Modern Art and theSolomon R. Guggenheim Foundation (both in New York) concerning two Picassopaintings that Schoeps claimed had been the subject of forced sales in Germany in1934 by his ancestor the Berlin banker Paul von Mendelssohn-Bartholdy.158

10. Other Possible Solutions

91. Last, legal experts might devise many other solutions, open-endedness beingone of the major advantages of mediation. Three real-life examples are given next.


First, where neither the claimant nor the possessor is particularly interested inkeeping the item in question, they might agree to transfer ownership to a thirdparty, such as a museum. Second, states claiming ownership of property belong-ing to their cultural heritage often decide to simply purchase the object on themarket, rather than engaging in lengthy and costly legal proceedings. In such cases,the state may be said to be acquiring the object for the second time. Third, Egypt,in particular, uses the “carrot and stick” technique to bring pressure to bear onstates wishing to carry out archaeological excavations on its territory: Permits havebeen granted only to states that have acceded to Egyptian claims.159

IV. Conclusion

92. A comparative analysis of international practice shows, in our opinion, thatthere are genuinely new developments in the restitution of cultural property, bothin terms of the methods used—alternative means of dispute resolution—and thesolutions proposed, with a great variety and diversity of types of restitution. Prac-tice in this field seems to be driven by new ethical principles governing the for-mation of public and private collections. Cultural property is no longer acquiredin the same way now as in the past, because standards and requirements havechanged considerably. Interestingly, the new ethical approach seems to be havingan influence even in more sensitive cases, where the passage of time and changesin what is perceived as unlawful make it more difficult to find appropriate solutions.

93. While it is probably premature to speak of the formation of an inter-national custom making some form of return or restitution of cultural propertymandatory, we can, however, observe a practice emerging coupled with a sense ofobligation, based on precisely those ethical considerations that come close to theopinio necessitatis, the condition required for a custom to come into being. Inthe area of cultural property, as in many others, ethical considerations precede theformation of a rule of law.160

ENDNOTES

1. For example, Council Directive 93/7/EEC of 15 March 1993 (Official Journal L 074 27.3.1993p. 74) is called the European Directive on the return of cultural objects unlawfully removed from theterritory of a member state, but deals only with the return to the state of origin.

2. For a comparative study of the various forms of recourse, see the joint research study byCornu, Protection de la Propriété Culturelle. The study describes the systems of China, France, theUnited Kingdom, and Switzerland.

3. On terminological issues, see the following two works by Kowalski, “Types of Claims” and“Restitution of Works of Art,” p. 17.

4. According to the Director-General of UNESCO, in a plea was made in 1978 for member statesof the organization to conclude agreements to return such property.

5. The Directive on the return of cultural objects, cited above, thus provides for their return,leaving the question of ownership to be settled by the legislation of the state of origin.


6. UNESCO Convention on the Means of Prohibiting and Preventing the Illicit Import, Exportand Transfer of Ownership of Cultural Property of November 14, 1970.

7. The Federal Republic of Nigeria v. Alain de Montbrison, Paris Court of Appeal, judgment ofApril 5, 2004, upheld by the Court of Cassation, judgment of September 20, 2006, J.-M. Schmitt,Journal des Arts, No. 256, 30 March–12 April 2007, p. 27.

8. Article 4, paragraph 1, of the statutes of the Intergovernmental Committee for Promoting theReturn of Cultural Property to Its Countries of Origin or Its Restitution in Case of Unlawful Ap-propriation of November 28, 1978.

9. For a recent overview of thinking on restitution, see Prott, Witnesses to History.10. This refers to the expression à bien plaire, used in Switzerland to describe fulfilment of a

natural obligation.11. See the press release issued by the French Ministry of Culture on February 13, 2002. From

this point of view, the term “restitution” should be used somewhat reservedly, as it merely changesthe legal characterization of the situation, not the facts themselves. The objects remain in France butare now there simply on loan.

12. Pomian, Memory and Universality.13. The issue of looting has grown in importance in the last decade following the adoption of

principles at the Washington Conference on December 3, 1998 (see www.lootedartcommission.com/Washington-principles). The text is reproduced in numerous commentaries. See, e.g., Palmer, Mu-seums, especially p. 278. Many other declarations, resolutions, and other texts have subsequentlybeen adopted by international organizations, be they institutions such as UNESCO or the Councilof Europe, professional bodies such as the International Council of Museums (ICOM) and the Amer-ican Association of Museums (AAM), or states adopting legislation on the matter.

14. Set up by 20 C4/Resolution 7.6/5, Records of the General Conference, 20th session, Paris,October 24–November 28, 1978, p. 97.

15. See footnote 8 above for statute.16. The committee’s work is covered in detail in its information kit “Promote the return or the

restitution of cultural property: Committee—Fund—UNESCO Conventions,” which can be foundon the UNESCO web site: http://unesdoc.unesco.org/images/0013/001394/139407eb.pdf.

17. Working document for discussion on a strategy to facilitate the restitution of stolen or un-lawfully exported cultural property, Thirteenth Session, UNESCO, Paris, February 7–10, 2005,CLT-2005/CONF.202/4.

18. The International Council of Museums is an international nongovernmental organization ofmuseums and museum professionals for the protection of heritage and collections.

19. The International Law Association has a committee on matters relating to the protection ofcultural heritage.

20. As to this, see below.21. See Perrot, De la Restitution.22. UNESCO Convention on the Means of Prohibiting and Preventing the Illicit Import, Export

and Transfer of Ownership of Cultural Property, November 14, 1970.23. Council Directive 93/7/EEC of March 15, 1993, cited above.24. The ICOM Code of Ethics for Museums can be found on the organization’s web site: www.

icom.org.25. In particular, the American Association of Museums (AAM).26. See, for example, the agreement between the Metropolitan Museum of Art of New York and

Italy, dated February 21, 2006, annexed hereto.27. Agreement dated April 27, 2006 between the Canton of Saint-Gall and the Canton of Zurich,

with the Swiss Confederation as mediator. For the content of this agreement, see below, paragraph 43.28. On this case, see the following two articles by Jérôme Carrière in the newspaper Le midi libre,

“L’Église de Vendémian Veut Garder ses Tableaux” (July 29, 2005, p. 6) and “Le Tableau RestauréRevient à l’Abbaye de Gellone” (July 24, 2005).

29. The dealer had purchased the piece for Y33,000 and intended to sell it for Y170,000. See LeMonde, November 11–12, 2007.


30. The object was included in the Interpol database of stolen works of art. See the press releaseof the Swiss Federal Office of Culture, dated October 9, 2007: http://www.news.admin.ch/message/index.html?lang�fr&msg-id�15062.

31. For example, Mr. Silvio Berlusconi holds a seventeenth-century clock, stolen from the Châ-teau de Bouges in France, which belongs to the French National Historical Monuments and SitesCommission, a unique object he refuses to hand back, claiming good faith. See N. Herzberg, “Aumusée des oeuvres volées,” Le Monde, August 2, 2008.

32. Indigenous and Tribal Populations Convention (No. 107), entered into force on June 2, 1959.33. Indigenous and Tribal Peoples Convention (No. 169), entered into force on September 5, 1991.34. On the recognition of indigenous peoples as subjects of international law and the emergence

of a law distinct from minorities law, see Rouland, Le droit des minorités, 348 and 391.35. References to the notion of cultural rights became common as from the 1980s (see Rouland,

Le droit des minorités, 461).36. The 1957 Convention refers only to the legitimacy of the communities’ individual or collec-

tive ownership rights over these lands and the possible limits thereto.37. United Nations Declaration on the Rights of Indigenous Peoples, October 2, 2007, Resolution

A/RES/61/295.38. First International Conference on the Cultural and Intellectual Property Rights of Indigenous

Peoples, Whakatana, 12 to 18 June 1993, Aotearoa, New Zealand.39. Draft Declaration on the Rights of Indigenous Peoples of 1994, E/CN.4/SUB.2/1994/2/

Add.1(1994).40. Article 4(a) of the 1970 UNESCO Convention, cited above.41. UNESCO Convention for the Safeguarding of the Intangible Cultural Heritage, October 17,

2003.42. UNESCO Convention on the Protection and Promotion of the Diversity of Cultural Expres-

sions, October 20, 2005.43. Article 3, paragraph 8, of the UNIDROIT Convention on Stolen or Illegally Exported Cul-

tural Objects of June 24, 1995.44. Article 5, paragraph 3(d), of the UNIDROIT Convention on Stolen or Illegally Exported Cul-

tural Objects of June 24, 1995.45. Human rights and cultural heritage law.46. Article 2 (b) of the Council of Europe Framework Convention on the Value of Cultural Her-

itage for Society of October 27, 2005. Although indigenous communities are not explicitly men-tioned, they are clearly included in the definition. Failure to mention indigenous peoples specificallyand the emphasis laid on the heritage issue may have been intended to reassure states that were lessopen-minded about community demands.

47. See, as to the system overall, Baptiste Cornillier, master’s degree dissertation on cultural her-itage law, Faculté Jean Monnet, Sceaux, Université Paris XI, 2008; Stephen Kinzer, “Homecoming forthe Totem Poles,” UNESCO Courier, April 2001, http://www.unesco.org/courier/2001_04/uk/doss23.htm.

48. The “moral right to the recovery of vital tokens of cultural identity, removed in the context ofcolonialism” is mentioned in a UNESCO text as an argument for countries demanding restitution,UNESCO, Paris, September 20, 1985, CLT-85/WS/41.

49. Article 1, paragraph 1, of the United Nations Declaration on the Rights of Indigenous Peoples(Resolution A/RES/61/295).

50. Contrary to the provisions of the 1994 Draft Declaration on the Rights of Indigenous Peo-ples, Article 12 of which concludes by referring to “the right to the restitution of cultural, intellec-tual, religious and spiritual property. . . .”

51. The text states that the property may have been taken “without their free, prior and informedconsent or in violation of their laws, traditions and customs.”

52. Article 12, paragraph 1, in fine, of the United Nations Declaration on the Rights of Indig-enous Peoples (Resolution A/RES/61/295).

53. Municipal Council, City of Rouen, session of October 19, 2007.


54. See below, paragraph 66.55. The dispute over the return of human remains to an Aborigine community in Tasmania by

the British Natural History Museum was apparently resolved only when the Aborigines invoked theirhuman rights. The dispute had been ongoing for a very long period and was resolved in 2007 throughmediation (see Julia May, “British Museum Hands over Aboriginal Remains,” The Age, 28 April 2007).See Prott, Witnesses to History, 401.

56. For an example of a restitution on the Museum’s initiative, see Specht, “The Australian Mu-seum,” 30.

57. The rule of inalienability was advanced in the objection raised by the museum, with the sup-port of the British Government, in response to a request from Zambia concerning the Broken Hillskull. See Mulongo, “Retour et restitution.”

58. On the inability to dispose of museum collections in the United Kingdom, see Vigneron, “Rap-port National—Grande-Bretagne,” 281, The author states that these criteria are general and apply toall national museums. However, the provisions relating to each museum must be consulted to as-certain the exact extent of the directors’ powers.

59. British Museum Act, 1963.60. National Gallery and Tate Gallery Act, 1954 (repealed on September 1, 1992).61. National Gallery and Tate Gallery Act.62. It was considered that this manuscript, looted during the Second World War and acquired by

the British Library in good faith, should be given back to the Italian monastery of Benvento (deci-sion of the Spoilation Advisory Panel in 2005). As restitution was not possible, it was handed over inthe form of a long-term loan.

63. See Report on the activities (2002–2003) and the twelfth session of the IntergovernmentalCommittee for Promoting the Return of Cultural Property to Its Countries of Origin or Its Resti-tution in Case of Unlawful Appropriation, UNESCO, 32 C/REP/15, June 27, 2003.

64. Vigneron, “Rapport National—Grande-Bretagne,” p. 282.65. On the subject of Korean archives held by the Bibliothèque nationale de France (French Na-

tional Library) since the late nineteenth century and the principle of inalienability, see D. Bétard,interview with Jacques Sallois, former director of the Museums of France, “Les Collections ne SontPas une Monnaie d’Échange,” Journal des Arts, No. 269, November 16–29, 2007, p. 17.

66. Gaudemet, Traité de droit administratif, 32.67. On the issue of restitution techniques, see below.68. Article L 451–7 of the French Heritage Code. This is precisely what prevented the restitution

of the Maori head by the City of Rouen, which owned the collections as a “Musée de France.” Thehead had been donated to the museum at the end of the nineteenth century.

69. Gabus and Renold, Commentaire LTBC ad art. 3 LTBC, N 7 ff.70. Commentaire LTBC ad art. 3 N 14 ss.71. Article 19 of the cantonal law of Fribourg of November 7, 1991 on the protection of cultural

property.72. Ganslmayr, “Return and Restitution,” 13.73. See Ganslmayr, “Return and Restitution,” 13. The author adds that it is precisely in these cases

that alternative solutions such as loans or exchanges can prove useful.74. The issue arises in similar terms in litigation. In the Ortiz case (Attorney-General of New Zea-

land v. Ortiz and others, House of Lords, 1983, 2 ALL ER 93), the request was made by the state ofNew Zealand rather than the Maori tribe concerned to avoid difficulty in determining the owner-ship or interest of one or other community with regard to the item. As to this, and more generallyon the issue of claims for restitution made by entities other than the state, see the commentary byMuir Watt, “La Revendication Internationale,” 20. In that case the problem did not arise, but theauthor describes more delicate situations, such as when the cultural object itself has a certain per-sonification in the country of origin and is presented as requesting its own restitution through aspokesperson.

75. See footnote 65.76. See paragraph 31 above.


77. The restitution took place in July 2002.78. Restitution of the Hasila G’psgolox totem pole by Sweden to Canada (see below).79. On the history of restitutions between states during the nineteenth and twentieth centuries,

see the above-cited works of Perrot, De la restitution.80. Signed in Bonn on July 5, 1995, decree No. 95–989 of August 28, 1995, Official Journal no.

205, September 3, 1995, p. 13083.81. The December 2000 agreements are analyzed in the procedure relating to the restitution of

the Venus of Cyrene to Libya by the Italian authorities, ruling by the regional administrative tribunalof Latium of February 28, 2007, upheld by the Council of State on April 8, 2008.

82. Law of July 19, 1941, Official Journal, July 20, 1941. On the terms of the exchange, see Perrot,De la Restitution, 192.

83. Law No. 56–631 of June 29, 1956, returning excavation objects belonging to the Guimet Mu-seum to the National Museum in Tokyo, by way of exchange.

84. Law No. 2002–323 of March 6, 2002, on the restitution by France of the remains of Saartjie Baart-man to South Africa (Official Journal No. 56 of March 7, 2002), Article 1: “From the date of entry intoforce of this law, the remains of the person known as Saartjie Baartman shall cease to be part of thecollections of the public institution that is the national natural history museum. From the same date,the administrative authority has two months to hand them over to the Republic of South Africa.”

85. See Fabrice Naudé-Langlois, “Après la Vénus Hottentote, à Qui le Tour ?” Le Figaro, February22, 2002.

86. On the particular status of human remains, see Cornu, “Le Corps Humain.”87. This method might be used for the case of the Maori head at the Museum of Rouen. A bill

has been put forward to overcome the legal difficulties relating to the restitution of part of themuseum’s collection (bill to authorize the restitution by France of Maori heads, registered with thepresidency of the Senate on February 22, 2008, consisting of one article based on the law of March6, 2002, which reads as follows: “From the date of entry into force of this law, the Maori heads heldby the Museums of France shall cease to be part of their collections.”

88. On the issue of the Korean archives, see International Expert Meeting on the Return of Cul-tural Property and the Fight against its Illicit Trafficking, meeting in Seoul, September 30–October3, 2002, Proceedings, Korean National Commission for UNESCO, 2002.

89. See above.90. Droz, Georges, Note sur “Fondation Abegg et Ville de Genève contre Anne Ribes et autres,”

Revue critique de droit international privé, 1989, p. 100 ff.91. Contract signed on July 1, 1997. See also below.92. Administrative Council Decision of March 26, 2003: “The Council decides to agree to trans-

form the loan into a donation from the City of Geneva to the Commune of Ile-sur-Tet of the twoworks, which are hereby removed from the inventory of works of art belonging to the Art and His-tory Museums.”

93. Italian judges coined a neologism to describe this operation: sdemanializzazione, which meansremoval from the public domain.

94. Ruling of the administrative regional court of Latium, dated February 28, 2007, upheld by theCouncil of State on April 8, 2008.

95. Agreement between the Metropolitan Museum of Art of New York and the Republic of Italy,dated February 21, 2006, annexed hereto.

96. See below, paragraph 68.97. See, for example, the statement made in January 2006 by the ICOM president, http://

icom.museum/statement_mediation_eng.html and the June 2005 report of the ICOM Legal Affairsand Properties Committee, http://icom.museum/download/68/doc-eng.doc/2005LEG06-eng.pdf.

98. See, for example, the Draft Rules of Procedure on Mediation and Conciliation adopted at thelast Committee meeting in June 2007, http://unesdoc.unesco.org/images/0015/001509/150913e.pdf.

99. The publicly announced agreement is annexed hereto (although the German is the officialoriginal). It is also available online: http://www.newsservice.admin.ch/NSBSubscriber/message/attachments/2568.pdf.


100. This agreement could encourage others, such as in the dispute between the two French Com-munes over the paintings of Saint Guilhem. Several attempts at negotiation have been made. TheCommune of Saint-Guilhem-Le-Désert, in particular, has proposed the return of other paintings inexchange for the restitution.

101. See below for the case of settlements approved by a court in the United States.102. See below.103. Article 4–1 of the Statutes of the Intergovernmental Committee for Promoting the Return of

Cultural Property to Its Countries of Origin or Its Restitution in Case of Unlawful Appropriationand its Draft Rules of Procedure on Mediation and Conciliation.

104. See Byrne-Sutton and Geisinger-Mariéthoz (Eds.), Resolution Mechanisms for Art-Related Dis-putes (p. 115).

105. Maria V. Altmann, Francis Gutmann, Trevor Mantle, George Bentley v. the Republic of Austria,arbitral award of January 15, 2006, http://bslaw.com/altmann/Klimt/award.pdf.

106. Republic of Austria et al. v. Maria V. Altmann, 541 U.S. 677 (2004). http://www.law.cornell.edu/supct/html/03–13.ZO.html

107. Maria V. Altmann, Francis Gutmann, Trevor Mantle, George Bentley v. the Republic of Austria,arbitral award of May 7, 2006, http://bslaw.com/altmann/Zuckerkandl/Decisions/decision.pdf.

108. Grounds cited in the 1815 treaty that imposed on France one of the first high-profile resti-tutions, denying France the right to plunder works from other countries. On these periods in thehistory of restitution, see Perrot, De la Restitution.

109. See the declaration by major museums defending the idea of the universal museum in theface of contemporary movements for restitution: Declaration on the Importance and Value of Uni-versal Museums, December 8, 2002, signed by 19 directors of major museums (see http://www.eniar.org/news/repat50.html). On this point and on restitution more generally, see B. Müller, “Faut-IlRestituer les Butins des Expéditions Coloniales,” Le Monde Diplomatique, July 2007, p. 20.

110. One example is the debate on the acquisition of the Elgin Marbles, or the pillaging of Ko-rean archives.

111. In 1987, the United Nations recalled the arguments of claimant countries, in particular to“recognize the moral right to the recovery of vital tokens of cultural identity, removed in the contextof colonialism.”

112. See especially Article 3, which refers to the idea of significant impairment and the notion ofsignificant cultural importance.

113. Article 11(2) of the resolution adopted by the United Nations General Assembly on October2, 2007, the United Nations Declaration on the Rights of Indigenous Peoples, cited above.

114. Cited above.115. On the various formal and real approaches, see Armbrüster, “La revendication,” 723.116. Resolution of the Institut de Droit International, Basel session, 1991 (see above).117. Beyeler v. Italy, European Court of Human Rights, judgment no. 33202/96 of January 5,

2000.118. Prott, Commentaire relatif à la convention Unidroit, 46.119. For examples of restitution, see Palmer, Museums and the 1987 United Nations report.120. This map was included on an inventory of cultural property of national importance, items

comparable to national treasures within the meaning of Article 30 of the Treaty establishing theEuropean Community.

121. On the issue of the Korean archives, see International Expert Meeting on the Return onCultural Property and the Fight against its Illicit Trafficking, Proceedings of the Seoul meeting, Sep-tember 30–October 3, 2002, Korean National Commission for UNESCO, 2002.

122. On the recognition of a specific international custom with regard to archives, see ManlioFrigo, “Les Archives et Autres Biens Culturels, Quelle Spécificité,” lecture delivered at the FacultéJean Monnet, Sceaux, as part of the meeting “Quel Avenir pour les Archives en Europe? Enjeux Ju-ridiques et Institutionnels,” December 2008 (proceedings to be published). On the distinction in therestitution process based on the administrative function or cultural nature of archives, see Perrot,De la restitution, 35.


123. On the international restitution of archives, see Ermisse, “L’actualité des contentieux” andKecskemeti, “L’histoire des contentieux.”

124. See above.125. It was argued that the meteorite was part of the natural landscape, rather than a sacred

object. See the presentation by Ian Tattersall at the International Symposium “From anatomic col-lections to objects of worship: conservation and exhibition of human remains in museums,” orga-nized by the Quai Branly Museum on February 22–23, 2008 (see web site of the Quai Branly Museum).

126. See Marin, “Statut Des Restes Humains,” 337.127. Lufkin, “Retour au Pays,” The Art Newspaper, no. 154, September 12/26, 2002.128. Ruling of September 16, 2004, setting standards for the identification, inventory, classifica-

tion and processing of the movable property and scientific documentation taken from archaeolog-ical excavations and diagnostics, Official Journal of France, September 28, 2004.

129. Case described by Palmer, UNESCO Conference, Seoul, November 26–28, 2008. On the re-sulting agreement, see below.

130. See Négri, “Fouilles Archéologiques,” 325, and more generally Négri, L’édification.131. United States Courts of Appeals, October 24, 1990, Autocephalous Greek Orthodox Church

of Cyprus and Republic of Cyprus v. Goldberg and Feldman Fine Arts Inc., and Peg Goldberg, noteby Muir Watt (cited above).

132. For an original proposal for cultural property management in the form of collective own-ership, see the fine thesis by Maget, Collectionnisme public, 625.

133. Arbitral award of January 15, 2006 (see above).134. Deliberation of the Municipal Council of the City of Rouen of October 19, 2007.135. Judgment of December 27, 2007, of the Administrative Tribunal of Rouen No. 702737 an-

nulling the above-mentioned deliberation, upheld by the Administrative Court of Appeal of Douai,judgment of July 24, 2008, Actualité Juridique—Droit Administratif (AJDA) of October 13, 2008,Actualité Jurisprudentielle, p. 1896.

136. For further information on the obelisk, see the world heritage section of the UNESCO website, http://whc.unesco.org/en/news/456/.

137. M. Bailey, “Natural History Museum Returns Aboriginal Remains,” The Art Newspaper, Lon-don no. 181, June 1, 2007, vol. 8(1), p. 1.

138. Article 4(1) of the above-cited agreement.139. Article 8(1) of the agreement.140. Press Release of September 28, 2006: “Museum of Fine Arts, Boston and Italian Ministry of

Culture Sign Agreement Marking New Era of Cultural Exchange” (www.mfa.org—press releases).141. Press release of September 25, 2007: “Italian Ministry of Culture and the J. Paul Getty Sign

Agreement in Rome” (www.getty.edu/news/press/center/italy_getty_joint_statement_092507.html).142. Press release of October 30, 2007: “Princeton University Art Museum and Italy Sign Agree-

ment Over Antiquities” (www.princeton.edu).143. Elisabetta Povoledo, “Pact Will Relocate Artifacts to Italy From Cleveland,” New York Times,

November 20, 2008.144. Potential disputes could also have been referred to the Arbitration and Mediation Centre of

the World Intellectual Property Organization (WIPO) or the UNESCO Intergovernmental Committee.145. Article 2, paragraph 1, of the above-mentioned mediation agreement.146. This is the case with the meteorite conserved by the American Museum for Natural History,

with which an indigenous tribe concluded an agreement requiring the meteorite to be available forit to hold its ceremonies. For more detail, see Ian Tattersall’s submission to the International Sym-posium “From Anatomic Collections to Objects of Worship: Conservation and Exhibition of HumanRemains in Museums,” organized by the Quai Branly Museum on February 22–23, 2008 (cited above).

147. Article 4 of the mediation agreement, cited above.148. See the press release by the French Ministry of Culture of February 13, 2002.149. See above.150. See the Action Plan for the EU Promotion of Museum Collections’ Mobility and Loan Stan-

dards, Finland, 2006, p. 12.


151. Cited above.152. Loan contract of July 1, 1997, between the Museum of Art and History of the City of Geneva

and the French state, represented by the Heritage Director of the Ministry of Culture.153. Deliberation of the Municipal Council of 2003.154. See Palmer, Museums, especially pp. 110–111.155. See, e.g., Maget, Collectionnisme public, 577; see also “Guidelines for the Establishment and

Conduct of Safe Havens for Cultural Material,” International Law Association, Rio de Janeiro Con-ference (2008), Cultural Heritage Law.

156. Maget, Collectionnisme public, 628.157. There were several articles in the Swiss newspaper Tages Anzeiger on the production of the

replica globe in 2007 and 2008.158. See the decision of the Federal Court of New York of February 2, 2009, ratifying the agree-

ment between the parties. The terms of the agreement remain confidential.159. Maget, Collectionnisme public, 549.160. On this aspect, see T. Scovazzi, Diviser, c’est Détruire, Principes Éthiques et Règles Ju-

ridiques Applicables au Retour des Biens Culturels, paper presented to the fifteenth session of theIntergovernmental Committee for Promoting the Return of Cultural Property to Its Countries ofOrigin or Its Restitution in Case of Unlawful Appropriation, Paris, May 11–13, 2009.

BIBLIOGRAPHY

Armbrüster, C. “La Revendication de Biens Culturels du Point de Vue du Droit International Privé.”Revue Critique de Droit International Privé, 93 (2004): 723ff.

Byrne-Sutton, Q., and Geisinger-Mariéthoz, F., eds. “Resolution Methods for Art-Related Disputes.”Studies in Art Law, vol. 11. Geneva: Schulthess, 1999.

Cornu, M., ed. Centre for Studies on International Legal Cooperation (CECOJI), Protection de laPropriété Culturelle et Circulation des Biens Culturels—Etude de Droit Comparé Europe/Asie. Univer-sity of Poitiers/CNRS, September 2008 �http://www.gip-recherche-justice.fr/catalogue/requete_resultat2.php?reference�369�

———. “Le Corps Humain au Musée, de la Personne à la Chose?” Recueil Dalloz 28 (July 30, 2009):1907. Also published as “The Human Body in the Museum: From a Person to an Object?” Art An-tiquity and Law XIV(3) (October 2009): 219 ff.

Droze, Georges, Note sur “Fondation Abegg et Ville de Genève contre Anne Ribes et autres,” Revuecritique de droit international privé, 1989, p. 100 ff.

Ermisse, G. “L’Actualité des Contentieux Archivistiques.” In Archives et Patrimoine, Collection Droitdu Patrimoine Culturel et Naturel, by M. Cornu and J. Fromageau, vol. 1: 51ff. L’Harmattan, 2004.

Gabus, P., and Renold, M-A. Commentaire LTBC (Loi Fédérale sur le Transfert International des BiensCulturels). Geneva: Schulthess, 2006.

Ganslmayr, H. “Return and Restitution of Cultural Property.” Museum XXXI, no.1 (1979): p. 62 ff.

Gaudemet, Y. Traité de Droit Administratif des Biens, 13th ed. Librarie Générle de droit et de Juris-prudence. Paris: 2008.

Kecskemeti, C. “L’histoire des Contentieux Archivistiques.” In Archives et Patrimoine, Collection Droitdu Patrimoine Culturel et Naturel, by M. Cornu and J. Fromageau, vol. 1: 41ff. L’Harmattan, 2004.

Kowalski, W. “Restitution of Works of Art.” RCADI 288, (2001): 9ff.


———. “Types of Claims for Recovery of Lost Cultural Property.” Museum International: Protectionand Restitution 57, no. 4/228 (2005): 85ff.

Maget, A. Collectionnisme public et conscience patrimoniale: Les collections d’antiquités égyptiennes enEurope. L’Harmattan, 2009.

Marin, J.-Y., “Statut des Restes Humains.” In Le Patrimoine Religieux, Enjeux Juridiques et PratiquesCulturelles, by B. Badevant-Guademet, M. Cornu and J. Fromageau. L’Harmattan, 2006 : 337ff.

Muir Watt, H., “La Revendication Internationale des Biens Culturels: À Propos de la Décision Améric-aine Eglise Autocéphale,” Revue Critique de Droit International Privé 81, no. 1 (January–March 1992):1ff.

Mulongo, A. H., “Retour et Restitution des Biens Culturels, L’Affaire du Crâne de Broken Hill,” Mu-seum XLIV, XLIV, no. 174, XLIV, Vol., XLIV, XLIV, XLIV, no. 2, 1992.

Négri, V., “Fouilles Archéologiques et Questions de Religion.” In Le Patrimoine Religieux, EnjeuxJuridiques et Pratiques Culturelles, by B. Badevant-Guademet, M. Cornu and J. Fromageau.L’Harmattan, 2006 : 325ff.

———. L’Édification du Droit du Patrimoine Culturel: Évolutions et Tensions, Doctoral thesis sub-mitted to the University of Paris XI, 2008.

Palmer, N. Museums and the Holocaust. London: Institute of Art and Law, 2000.

Perrot, X. De la Restitution Internationale des Biens Culturels aux XIXème et XXème Siècles: Vers uneAutonomie Juridique. Doctoral thesis defended at the University of Limoges, December 7, 2005.

Pomian, K.. Memory and Universality: New Challenges Facing Museums. Public debate. Paris: UNESCO,February 5, 2007.

Prott, L. V., ed. Commentaire Relatif à la Convention UNIDROIT. Paris: UNESCO, 2000.

———, ed. Witnesses to History, A Compendium of Documents and Writings on the Return of CulturalObjects. Paris: UNESCO, 2009.

Rouland, N. Le Droit des Minorités et des Peuples Autochtones. Paris: Presses Universitaires France(PUF), 1996.

Specht, J. “The Australian Museum and the Return of Artefacts to Pacific Island Countries,” MuseumXXXI, no. 1, 1979.

Vigneron, S. “Rapport National—Grande-Bretagne.” In Protection de la Propriété Culturelle et Circu-lation des Biens Culturels—Etude de Droit Comparé Europe/Asie, edited by M. Cornu. Centre for Stud-ies on International Legal Cooperation (CECOJI), University of Poitiers/CNRS, September 2008.�www.gip-recherche-justice.fr/catalogue/requete_resultat2.php?reference�369�
